293. The Prosecution submits that the Trial Chamber erred when it took into consideration, as an individual and mitigating factor, that the Prosecution had presented evidence during trial concerning allegations that it either had withdrawn or was not allowed to add to the indictment.[1] It argues that a reduction in the sentence for this reason would have required a finding that Setako was prejudiced by a specific pre-trial delay resulting from the Prosecution’s conduct.[2] The Prosecution submits that the Trial Chamber did not make such a finding and that this “flies in the face of fair trial principles” since the Prosecution needed to know how much delay it supposedly caused.[3] It further contends that the Trial Chamber itself contributed to the prolongation of the trial because, before and during trial, Setako requested the Trial Chamber to exclude all the evidence at issue, but the Trial Chamber did not act.[4] In the Prosecution’s view, the Trial Chamber could not “both allow […] the Prosecution [to] put in evidence over an objection and then later on fault the Prosecution for having put on that evidence.”[5]

295. In assessing Setako’s sentence, the Trial Chamber stated that “the Prosecution presented a substantial body of evidence based on allegations that it had either withdrawn from the Indictment, or which it was not allowed to add to it”.[6] While it noted that the trial had proceeded rapidly, the Trial Chamber considered that “this should be taken into account in sentencing.”[7]

296. The Appeals Chamber acknowledges that some of the evidence at issue was the subject of three Defence motions filed before trial requesting that the Prosecution be precluded from presenting evidence relating to pre-1994 allegations which the Trial Chamber deferred deciding upon until its final deliberations.[8] Nonetheless, the Appeals Chamber recalls that the Prosecution’s request to amend the 22 March 2004 Indictment in 2007 to add a count of conspiracy to commit genocide which would have been supported by pre-1994 allegations, was denied.[9] Accordingly, the Prosecution was well aware that the pre-1994 allegations were not permitted to form part of its case and it was therefore the Prosecution’s responsibility to limit the evidence it presented to the case it was permitted to pursue. Furthermore, as the Trial Chamber noted, the Prosecution presented evidence on a number of allegations which: (i) it had sought to add to the indictment but which were explicitly denied by the Trial Chamber;[10] (ii) it sought to have removed from the indictment;[11] (iii) it could have sought to add to the indictment but failed to do so;[12] or (iv) it explicitly stated it was not pursuing a conviction for.[13] The Appeals Chamber recalls that it is the Prosecution’s responsibility to know its case before proceeding to trial and to present its case accordingly.[14]

297. However, despite this, the Trial Chamber did not conclude that Setako’s right to a fair and expeditious trial had been violated by the presentation of the evidence at issue.[15] Instead, it decided to take into account this issue in sentencing, notwithstanding the fact that the trial “proceeded rapidly”.[16] In view of the fact that the Trial Chamber did not find that there was a violation of Setako’s fair trial rights, the Appeals Chamber finds that the Trial Chamber abused its discretion in considering this issue as a factor in the determination of Setako’s sentence. The Appeals Chamber will consider the impact of this error on the sentence, if any, in the section below.

Momir Nikolić argued that the Trial Chamber is not allowed to substitute the Prosecution’s assessment of his co-operation with its own. The Prosecution submitted that Momir Nikolić had co-operated fully; the Trial Chamber had some reservations.

On the law, the Appeals Chamber disagreed with Momir Nikolić’s claim. It held: “The Appeals Chamber acknowledges that the Prosecution is in a position to accurately assess the co-operation of an accused. However, the evaluation of the extent and nature of the Appellant’s co-operation, and thus the weight, if any, to be given to this mitigating circumstance, is within the discretion of the Trial Chamber.” (para. 91).

However, the Appeals Chamber also held that if the Trial Chamber does not accept the evaluation of the Prosecution regarding the accused’s co-operation, it has to give sufficient reason why it does so, because of its obligation to provide a reasoned opinion under Article 23(2) of the Statute (para. 96). The Appeals Chamber therefore looked at whether the Trial Chamber gave sufficient reasons for its reservations regarding Momir Nikolić’s co-operation with the Prosecution.

The Appeals Chamber found several errors: the Trial Chamber stated that there were “numerous instances” where Momir Nikolić had been evasive in his testimony, but cited only to one such instance (para. 103); the Trial Chamber stated that he had told lies to the Prosecution before entering a plea agreement, but disregarded the fact that Momir Nikolić went back to the Prosecution on his own initiative, apologised, corrected his statement, and openly admitted to having rendered false confessions (para. 107); the Trial Chamber stated that Momir Nikolić’s testimony was not very detailed and that he should generally have been more open, but it had never asked for more details and it did not cite to any instance where the accused had failed to be more detailed or open (para. 113).

The Appeals Chamber concluded that these errors led the Trial Chamber to attach insufficient weight to the mitigating circumstance of his co-operation with the Prosecution (para. 114). 

365. In order to be a factor in mitigation, the remorse expressed by an accused must be genuine and sincere.[1] The Appeals Chamber recalls that it has previously held that an accused can express sincere regrets without admitting his participation in a crime.[2] In such circumstances, remorse nonetheless requires acceptance of some measure of moral blameworthiness for personal wrongdoing, falling short of the admission of criminal responsibility or guilt. This follows from the ordinary meaning of the term remorse[3] as well as the approach taken in the few cases where expressions of remorse made by accused who maintained their innocence have been accepted in mitigation.[4]

366. However, beyond such expressions of remorse, an accused might also express sympathy, compassion or sorrow for the victims of the crimes with which he is charged. Although this does not amount to remorse as such, it may nonetheless be considered as a mitigating factor. The Appeals Chamber notes that such expressions of sympathy or compassion have been accepted as mitigating circumstances by Trial Chambers of both the ICTR and this Tribunal.[5]

1073. The Appeals Chamber observes at the outset that, in pleading the excessive length of the proceedings, the Appellant is in fact raising a substantive issue going to the regularity of the trial. However, inasmuch as the Appellant raises this issue in his appeal against sentence with a view to having it reduced, and a reduction of sentence is one of the remedies available to redress the alleged violation, the Appeals Chamber will examine these arguments in this section. Nevertheless, the Appeals Chamber notes that the length of the proceedings is not one of the factors that a Trial Chamber must consider, even as a mitigating circumstance, in the determination of the sentence.

1074. The right to be tried without undue delay is provided in Article 20(4)(c) of the Statute. This right only protects the accused against undue delays.[3] Whether there was undue delay is a question to be decided on a case by case basis.[4] The following factors are relevant:

- the length of the delay;

- the complexity of the proceedings (the number of counts, the number of accused, the number of witnesses, the quantity of evidence, the complexity of the facts and of the law);

- the conduct of the parties;

- the conduct of the authorities involved; and

- the prejudice to the accused, if any.[5]

1086. […] The precise remedy to be granted was thus left to the discretion of the Trial Chamber, since the Appeals Chamber could not anticipate at that time whether the Appellant would be found guilty or, a fortiori, what sentence he would receive. Hence the Appeals Chamber could not give the Trial Chamber more detailed instructions. Nor can the Appeals Chamber discern in what way the disposition of the Decision of 31 May 2000 in the Semanza case, as cited by the Appellant, was more precise than that of the Decision of 31 March 2000: the only difference is the express reference to Article 23 of the Statute in the Semanza decision.[6] Finally, the fact that the violation of the defendant’s rights was not treated as a mitigating circumstance did not constitute an error. What was important was that the sentence should be reduced in order to take account of the rights violation, and this was done.[7] The Appeals Chamber agrees with the Trial Chamber that the violation of the Appellant’s rights was not a mitigating circumstance in the true sense of the term.

1095. […] The Appeals Chamber agrees with the Trial Chamber that the remedy ordered in the Judgement did constitute a significant reduction of the sentence, which adequately compensated the Appellant for the violation of his fundamental rights. […]

Having set aside the convictions of Appellant Nahimana under Article 6(1) of the Statute for conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, extermination (crime against humanity) and persecution (crime against humanity), and having upheld his convictions under Article 6(3) of the Statute for direct and public incitement to commit genocide and persecution (crime against humanity), the Appeals Chamber reduced Nahimana’s sentence from life to 30 years of imprisonment.

Having set aside the convictions of Appellant Barayagwiza for conspiracy to commit genocide, convictions relating to RTLM broadcasts and those for direct and public incitement to commit genocide (under Article 6(1) of the Statute), and having upheld his convictions under Article 6(1) of the Statute for genocide (instigation), extermination (crime against humanity) and persecution (crime against humanity), the Appeals Chamber reduced Barayagwiza’s sentence from 35 to 32 years of imprisonment, noting that the sentence imposed by the Trial Chamber already reflected the reduction granted for various violations of his rights.

Having set aside the convictions of Appellant Ngeze for conspiracy to commit genocide, as well those with respect to Kangura publications under Article 6(1) for genocide and persecution (crimes against humanity), and those with respect to crimes in Gisenyi for genocide, direct and public incitement to commit genocide, extermination (crime against humanity) and persecution (crime against humanity); and having upheld his convictions for direct and public incitement to commit genocide (Kangura), genocide (aiding and abetting) and extermination (aiding and abetting), the Appeals Chamber reduced Ngeze’s sentence from life to 35 years of imprisonment.

47. The Appeals Chamber recalls that Trial Chambers are “required as a matter of law to take account of mitigating circumstances”.[1] The Appeals Chamber is not satisfied that the Trial Chamber wrongly departed from the “balance of probabilities” standard set out in the Čelebići Appeal Judgement. Having recalled the standard in question, the Trial Chamber stated that, in cases of plea agreements, it would primarily rely on the mitigating factors agreed to by the parties. In other words, the Trial Chamber logically relieved the Appellant from discharging the burden of establishing mitigating circumstances on the balance of probabilities with respect to those mitigating circumstances agreed upon by the parties. […]

267. […] As the Appeals Chamber stated in Musema, “[i]f a Trial Chamber finds that mitigating circumstances exist, it is not precluded from imposing a sentence of life imprisonment, where the gravity of the offence requires the imposition of the maximum sentence provided for.”[1] Proof of mitigating circumstances does not automatically entitle the Appellant to a “credit” in the determination of the sentence; rather, it simply requires the Trial Chamber to consider such mitigating circumstances in its final determination. […]

284. The Appeals Chamber notes that, in determining the sentence, the Trial Chamber expressly took into account Ntabakuze’s family situation and his lengthy public service to his country as a military officer, as well as his social, educational, and professional background.[1] The Trial Chamber, however, concluded that the gravity of the crimes and the aggravating factors greatly outweighed these mitigating factors.[2] The Appeals Chamber recalls that in general only little weight is afforded to the family situation of the convicted person in the absence of exceptional family circumstances.[3] Similarly, the lack of a previous criminal record and a purported likelihood of successful rehabilitation are common characteristics among many convicted persons which are accorded little weight, if any, in mitigation in the absence of exceptional circumstances.[4] As for Ntabakuze’s “exemplary” military career, the Appeals Chamber also considers that it was in the Trial Chamber’s discretion not to accord this factor any mitigating value in the absence of particular reasons for doing so. Ntabakuze does not submit that exceptional circumstances obliged the Trial Chamber to accord special value to any of the factors listed above.

296. […] The Appeals Chamber reiterates that in most cases the good character of a convicted person carries little weight in the determination of the sentence.[1] Ntabakuze does not submit any argument demonstrating a discernible error in the Trial Chamber’s assessment. His contention in this respect is therefore rejected.

398. The Appeals Chamber is of the view that it was within the Trial Chamber’s discretion to take into account as mitigation in sentencing the Appellant’s previous good character and accomplishments as bourgmestre. Precedent does not support the Prosecution’s position that “being a successful academic, politician or administrator is irrelevant” as a mitigating factor in crimes of genocide and crimes against humanity. Notwithstanding, the Appeals Chamber notes that in most cases the accused’s previous good character is accorded little weight in the final determination of determining the sentence.[1] […]

282. The Appeals Chamber considers that the fact that Ntabakuze was acquitted of all charges against him pursuant to Article 6(1) of the Statute and was solely convicted pursuant to Article 6(3) of the Statute is not subject to consideration as a mitigating factor. The form of liability is not an individual circumstance of the accused but the objective definition of his participation in the criminal conduct. Further, failure to prevent or punish subordinates’ crimes constitutes the culpable conduct under Article 6(3) of the Statute and the absence of conviction under Article 6(1) of the Statute does not reduce that culpability.[1] The Appeals Chamber finds that the Trial Chamber was therefore correct in not considering in mitigation the fact that Ntabakuze was not convicted pursuant to Article 6(1) of the Statute and, accordingly, rejects Ntabakuze’s argument in this respect.

255. Pursuant to Rule 101(B)(ii) of the Rules, a Trial Chamber is required to take into account any mitigating circumstances in determining a sentence.[1] However, the accused bears the burden of establishing mitigating factors by a preponderance of the evidence.[2] If an accused fails to put forward relevant information, the Appeals Chamber considers that, as a general rule, a Trial Chamber is not under an obligation to seek out information that counsel did not see fit to put before it at the appropriate time.[3] Rule 86(C) of the Rules clearly indicates that sentencing submissions shall be addressed during closing arguments, and it was therefore Rukundo’s prerogative to identify any mitigating circumstances at the time. The Appeals Chamber notes that Rukundo made no sentencing submissions at trial.[4] This in itself would suffice for the Appeals Chamber to dismiss his argument.

48. The paragraphs of the Sentencing Judgement at issue under this ground of appeal read as follows:

The Tribunal has jurisdiction over crimes committed during the armed conflict in the former Yugoslavia, where ordinary citizens were involved in horrendous events. The Trial Chamber is of the view that the prior good character of a convicted person (understood against a common standard of behaviour) does not as such count in mitigation, although in exceptional circumstances, for which there is no evidence in this case, it may.[1]

The Trial Chamber does not accept that this proposed ground of mitigation should be given any effect in this case.[2]

49. The Appeals Chamber notes that, while it is correct to say that good character has been recognised as a mitigating circumstance in most cases, this is not a constant practice but instead varies with the circumstances; e.g., in the Tadić Sentencing Judgement, the Trial Chamber noted that the Accused was “a law abiding citizen and seemingly enjoyed the respect of his community” and “was an intelligent, responsible and mature adult […] capable of compassion towards and sensitivity for his fellows” but noted that this, “if anything, aggravates more than it mitigates: for such a man to have committed these crimes requires an even greater evil will on his part than for a lesser man.”[3]

50. Even when personal factors or circumstances – including prior good character – have been considered as mitigating circumstances, they have been given little weight in mitigation. In the Furundžija Trial Judgement, the Trial Chamber acknowledged that the accused had “no previous conviction and [was] the father of a young child” but noted that “this might be said of many accused persons and cannot be given significant weight in a case of this gravity”.[4] The same approach was taken in the Jelisić Trial Judgement.[5] The statement of the Trial Chamber in the present case to the effect that the International Tribunal “has jurisdiction over crimes committed during the armed conflict in the former Yugoslavia, where ordinary citizens were involved in horrendous events” – read in conjunction with the limitation that the prior good character of a convicted person would in isolation only count in mitigation in exceptional circumstances – follows the same line of reasoning.

74. The Appeals Chamber finds that the Appellant’s argument that he surrendered knowing that he “would be facing a prison sentence” has no merit as this might equally be said of every accused having surrendered and pled guilty before the International Tribunal for the serious crimes referred to in the Statute. […].

194. The Appeals Chamber further considers that, contrary to the Prosecution’s assertion,[1] the Trial Chamber was not obliged to accord “sufficient weight” to the absence of mitigating factors in this case, nor does the Prosecution cite any jurisprudence in support of this proposition. The Appeals Chamber considers that the Trial Chamber properly exercised its discretion when it examined the various mitigating factors advanced by the Appellant, and the submissions advanced by the Prosecution[2] and concluded that “there [were] no mitigating factors that should be taken into account in the determination of the sentence.”[3] The Appeals Chamber finds no discernible error in this approach. In light of the foregoing, the Appeals Chamber finds that the Prosecution has failed to demonstrate that the Trial Chamber abused its discretion by failing to accord sufficient weight to the absence of any mitigating factors in this case.

344. […] With respect to the Prosecution’s submission that an accused’s cooperation must be “substantial” in order to be credited, the Appeals Chamber has previously affirmed that a Trial Chamber may consider less-than-substantial cooperation as a mitigating factor as long as it accords it less weight.[1] The Prosecution does not demonstrate error in the weight accorded by the Trial Chamber to Jokić’s cooperation with the Prosecution. […]

328. The Appeals Chamber holds that the Trial Chamber permissibly considered Blagojević’s participation in de-mining activities under the broad category of post-conflict conduct that goes to the character of the accused. In the Babić Sentencing Appeal, the Appeals Chamber observed that “[n]either the Statute nor the Rules exhaustively define the factors which may be taken into account by a Trial Chamber in mitigation or aggravation of a sentence.”[1] In that case, the Appeals Chamber provided a non-exhaustive list of twelve factors that have been taken into account in connection with mitigation. Notably, the Babić Appeals Chamber placed remorse within the broader context of the “character of the accused after the conflict”.[2] The Appeals Chamber did not specify how other post-conflict conduct – distinguishable from remorse – could evidence the character of the accused in mitigation of a sentence. Leaving such considerations to the Trial Chambers, the Appeals Chamber recognized that they are “endowed with a considerable degree of discretion in deciding on the factors which may be taken into account”.[3] In the present case, the Trial Chamber considered that Blagojević’s active engagement in planning, managing, and organizing a system of de-mining in the army of the Republika Srpska was a relevant mitigating circumstance, without placing it under the rubric of remorse.[4]

330. The Appeals Chamber […] considers that conduct of an accused that promotes reconciliation in the former Yugoslavia may be considered as a mitigating circumstance whether or not it is directly connected to the harm the accused caused. The Appeals Chamber observes that the Plavsić and Miodrag Jokić cases do not stand for a different proposition. In the Plavsić Sentencing Judgement, the Trial Chamber credited Biljana Plavsić for “ensuring that the Dayton Agreement was accepted and implemented in Republika Srpska.”[5] In the case of Miodrag Jokić, the Trial Chamber credited him for post-war “participat[ion] in political activities programmatically aimed at promoting a peaceful solution to the conflicts in the region.”[6] Similarly, the Trial Chamber here credited Blagojević for taking a leadership role in implementing one aspect of the Dayton Peace Accords, as previous Trial Chambers, cited by the Prosecution, have credited convicted persons for implementing that agreement.

At para. 53, the Appeals Chamber recalled the applicable law when additional evidence is admitted on appeal, and specified that findings pertaining to mitigating circumstances are reached “on a balance of probabilities”:

53. In light of the above, the Appeals Chamber will now determine whether the Trial Chamber correctly assessed the evidence before it when evaluating the Appellant’s cooperation. The Appeals Chamber will then assess the value, if any, of the additional evidence admitted on appeal, and itself determine whether this material, when considered together with the materials before the Trial Chamber, warrants, on a balance of probabilities,[1] a finding of substantial cooperation and a reduction of sentence.

See also para. 8 and footnote 23.

In light of the confidential nature of the use made of the information provided by the Appellant, the Appeals Chamber considered that, “where the Trial Chamber must evaluate an accused’s cooperation based on information solely in the possession of the Prosecution”, it must be established “whether the Trial Chamber has sufficiently assessed the evidence provided on an ex parte basis in order to protect the rights of the accused, where the accused himself does not have the opportunity to do so”. See para. 56.

The Appeals Chamber then detailed the practice to be followed by the Prosecution and the Trial Chambers in such cases:

57. […] the better practice is to first check whether the documents in question could be disclosed inter partes in order to allow the accused to himself comment on the Prosecution’s submissions.[1] This may in certain instances necessitate an application to another Chamber for a variation in protective measures. Where it is not possible for such documents to be submitted inter partes, it is within a Trial Chamber’s discretion to rely on the Prosecution’s ex parte assessment of the accused’s cooperation, as the Trial Chamber did in the instant case. In this event, the Appeals Chamber emphasises that the Prosecution must provide sufficient explanations in its assessment as to why it considers the information given by an accused valuable or not. The Trial Chamber should then evaluate the nature and extent of the accused’s cooperation and set out a reasoned opinion in writing.[2] Under the circumstances, such reasoned opinion is the Appellant’s only guide as to whether his right to a fair trial has been preserved.

61. […] The Appeals Chamber refers in this context to the approach taken in the Dragan Nikolić case, where the Trial Chamber requested the Prosecution at the Sentencing Hearing to provide documents that “would enable [it] to review them in camera in order to assess if the Accused’s co-operation with the Prosecution could be regarded as being substantial”. The Trial Chamber then gave a substantive account of its analysis of the provided documents, before concluding that it could not itself assess them and therefore accepting the Prosecution’s assessment that the Accused’s co-operation was substantial.

62. The Appeals Chamber is convinced that, in order to provide a transparent assessment of the Appellant’s cooperation, a similar approach would have been appropriate in the present case, in particular in light of the reassurances given to the Appellant at the Sentencing Hearing.

777. As a matter of law, a Trial Chamber is obliged to take account of mitigating circumstances in imposing sentence.[1]  However, the weight to be attached is a matter within its discretion.  […]

787. Reference to the jurisprudence of the Tribunal and ICTR, [1] and to guidelines and practice of national jurisdictions,[2] illustrates that it is established practice that trial courts exercise a broad discretion in the factors they may consider on sentence. This indicates that all information relevant to an accused’s character may be considered.  As accepted by the Supreme Court of the United States, “modern concepts individualising punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial”.[3]  Therefore there is a relevant distinction in the role of a fact-finder at trial and a sentencing judge, who is not restrained by the same rules.  Rather, it is essential that the sentencing judge is in “possession of the fullest information possible concerning the defendant’s life and characteristics”.[4] 

788. The Trial Chambers of the Tribunal and the ICTR have consistently taken evidence as to character into account in imposing sentence.  The Appeals Chamber notes that factors such as conduct during trial proceedings, ascertained primarily through the Trial Judges’ perception of an accused, have also been considered in both mitigation and aggravation of sentence.[5]  […] This behaviour is relevant to a Trial Chamber’s determination of, for example, remorse for the acts committed or, on the contrary, total lack of compassion.[6] 

66. The weight to be attached to co-operation as a mitigating factor is within the discretion of Trial Chambers, which can decide, after assessing the importance to give to this factor, to give it no weight, to give it “substantial” weight within the meaning of Rule 101(B)(ii), or to give it more “modest” weight in mitigation.[1] The Appellant in the present case only argues that the evidence clearly and unambiguously showed that his cooperation was substantial, and that this, combined with the risk to which he exposed himself by co-operating, should have led the Trial Chamber to accord “greater weight than merely ‘some importance’”.[2]  In the absence of a demonstration that the Trial Chamber committed an error in assessing the importance of his cooperation, the Appeals Chamber dismisses the Appellant’s argument in that regard.

674. […] As regards additional mitigating evidence that was available, though not raised, at trial, the Appeals Chamber does not consider itself to be the appropriate forum at which such material should first be raised.[1] Rule 85(A)(vi) provides that a Trial Chamber will consider “any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more charges in the indictment”. In this regard, the following passage from Kupreškić should be reiterated:

If an accused fails to put forward any relevant information, the Appeals Chamber does not consider that, as a general rule, a Trial Chamber is under an obligation to hunt for information that counsel does not see fit to put before it at the appropriate time.[2]

In considering whether an Appellant’s surrender while incarcerated could be considered as voluntary and thus as a mitigating factor in sentencing, the Appeals Chamber found that given that the lack of cooperation between the authorities of Republika Srpska and the International Tribunal during the period under consideration may have impacted upon the likelihood of extradition, the voluntary surrender could be considered a mitigating factor (para. 712).  However, the fact of incarceration meant that this mitigating factor would not be given much weight (para. 713).

Paras 599-601: mere facilitation by an accused of his transfer to the International Tribunal cannot be considered voluntary surrender. Nevertheless, the underlying rationale for treating voluntary surrender in mitigation also applies to an indictee’s facilitation of the transfer process. The Appeals Chamber found that Martinović facilitated his transfer. As such, this factor should have been considered in mitigation, and the Trial Chamber erred in finding that it “cannot” be considered. 

753. The Appeals Chamber recalls that a trial chamber is required to consider any mitigating circumstance when determining the appropriate sentence, but it enjoys considerable discretion in determining what constitutes a mitigating circumstance and the weight, if any, to be accorded to the factors identified.[1] The existence of mitigating factors does not automatically imply a reduction of sentence or preclude the imposition of a particular sentence.[2]

754. Turning to Karadžić’s submissions regarding the purported violation of the non-prosecution agreement, the Appeals Chamber observes that the Trial Chamber considered the Holbrooke Agreement[3] and Karadžić’s reliance on it for two purposes: (i) to demonstrate his good character and conduct after the conflict; and (ii) to receive a remedy for the violation of his rights resulting from his prosecution at the ICTY in alleged breach of this agreement.[4] The Trial Chamber concluded that Karadžić’s decision to step down from public office in July 1996 had a “positive influence on the establishment of peace and stability” in Bosnia and Herzegovina and the region and found this to be a mitigating factor.[5] The Trial Chamber also examined evidence that Karadžić verbally agreed to step down from public office in order to not be prosecuted by the ICTY[6] but considered his reasons for resigning irrelevant to determining mitigating factors in sentencing.[7]

755. The Appeals Chamber finds no error in this approach. The Appeals Chamber recalls that the ICTY Appeals Chamber issued a decision on 12 October 2009 finding that, even if the Holbrooke Agreement provided that Karadžić would not be prosecuted before the ICTY, “it would not limit the jurisdiction of the [ICTY], it would not otherwise be binding on the [ICTY] and it would not trigger the doctrine of abuse of process”.[8] The Appeals Chamber of the ICTY considered that a fundamental aim of international criminal tribunals is to end impunity by ensuring that serious violations of international humanitarian law are prosecuted and punished.[9] Consequently, it held that individuals accused of such crimes “can have no legitimate expectation of immunity from prosecution” and that Karadžić’s “expectations of impunity do not constitute an exception to this rule”.[10] Accordingly, the Trial Chamber correctly did not take into account any purported non-prosecution agreement when assessing the mitigating factors. The Appeals Chamber finds that Karadžić does not demonstrate any error on the part of the Trial Chamber in this respect.

759. As to Karadžić’s submissions relating to his good conduct during the war, the Appeals Chamber recalls that this may be a relevant factor in sentencing,[1] but that good character or conduct of a convicted person often carries little weight in the determination of the sentence.[2] The Appeals Chamber observes that the Trial Chamber noted Karadžić’s submission on this point, recalled the relevant jurisprudence, and found that, given the gravity of his crimes and his central involvement in them, it did not “consider his conduct during the war to be mitigating in any way”.[3] The Appeals Chamber also recalls the Trial Chamber’s findings that Karadžić’s participation was integral to crimes committed in furtherance of four joint criminal enterprises, as well as a finding, in one instance, that his “contribution was so instrumental that, without his support, the SRK’s attacks on civilians could not have in fact occurred”.[4] In light of the above, Karadžić has failed to demonstrate that the Trial Chamber erred in not giving weight to his submission of good conduct during the war in mitigation of his sentence.